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October 6, 1998

 

Mr. Mark M. Rider
County Attorney
County of Saratoga
Saratoga Municipal Center
40 McMaster Street
Ballston Spa, NY 12020

Mr. Don Lehman
The Post-Star
P.O. Box 2157
Glens Falls, NY 12157

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your correspondence,
unless otherwise indicated.

Dear Messrs. Rider and Lehman:

I have received correspondence from both of you regarding Saratoga County's denial of a
request rendered by Mr. Rider for records sought by Mr. Lehman of the Post-Star. Mr. Lehman has
sought an advisory opinion concerning the propriety of Mr. Rider's determination.

The records requested involve "an accounting of restitution payments made to ... (the
Probation) department by former Moreau Supervisor Michael J. Sullivan as well as the schedule of
payments dictating how often he is supposed to make them." Mr. Rider denied the request, citing
§390.50 of the Criminal Procedure Law. That provision, which is entitled "Confidentiality of pre-sentence reports and memoranda", states in subdivision (1) in relevant part that:

"Any pre-sentence report or memorandum submitted to the court
pursuant to this article...or other information gathered for the court by
a probation department, or submitted directly to the court, in
connection with the question of sentence is confidential and may not
be made available to any person or public or private agency except
where specifically required or permitted by this statute or upon
specific authorization of the court."

With respect to the scope of the language quoted above, Mr. Rider contended that "its application
is broader than solely to presentence matters."

While I have some familiarity with §390.50, in order to obtain an expert opinion concerning
its application, I contacted Ms. Linda Valenti, Counsel to the State Division of Probation and
Correctional Alternatives. In short, Ms. Valenti indicated that the records at issue in her view are
unrelated to "the question of sentence" and that §390.50 is inapplicable with regard to the records
at issue.

Assuming that §390.50 does not apply, I believe that the Freedom of Information Law would
govern rights of access. In brief, that statute is based upon a presumption of access. Stated
differently, all records of an agency are available, except to the extent that records or portions thereof
fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

While §87(2)(b) permits an agency to withhold records insofar as disclosure would constitute
"an unwarranted invasion of personal privacy", in view of the nature of disclosures made by means
of public proceedings, I do not believe that the cited provision would serve as a basis for denial. The
fact of the former Supervisor's conviction is clearly a matter of public record, as are the terms of his
sentence. As in any situation in which a government agency is to be reimbursed or paid pursuant to
the terms of a contract or similar agreement, the records reflective of those terms and whether or the
extent to which payments have appropriately been made are, in my opinion, accessible to the public
under the Freedom of Information Law.

In sum, to the extent that the records sought exist, I believe that they must be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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